A comment (Digitization Contract expands access to public records) posted here last week to a posting (Yet another digitization contract limits free access to public records) about the NARA/TGN contract to digitize certain materials at NARA, said that the contract "does not limit access to public records" and that "This is a definite win for the public."

I want to to take the opportunity to address the arguments made in that comment and enumerate some of the problems that I see with the contract and ones like it. In brief: (as James pointed out) while contracts like this one are attractive in the short run to some people because they do provide some access that we do not now have, in the long run they are bad ideas because our short term, limited gains result in long-term net losses to free public access to public information. Even people who relish the short term gains should be concerned about the long-term net losses.

The good things about the Contract
Let me begin by noting that there are many things about this contract that are good and that reflect, I think, the fact that government officials have learned from past mistakes. Examples of the good things in the contract are: the inclusion specific technical specifications, the right of NARA to interrupt processing when necessary to provide reference service and public access to the materials, the "non-exclusive" nature of the contract, the fact that TGN must provide free online access to the Digitized Materials in all NARA locations, the fact that NARA does not transfer permanent control or ownership of the materials to TGN, and the five year limitation on TGN's sole use of (some of) the digital copies.

The bad things about the Contract
But there are, I believe, several things wrong with the contract -- things that result in a net loss to the public rather than a net gain.

1. The "enhancements" provided by the contract are fee-based and therefore explicitly and implicitly limit use and impose two-tier access.
2. The contract promotes access over control. For the public to have "access" to public information content without the ability to use and reuse it "enhances" with one hand while it diminishes with the other. Enhancing access at the expense of control is a net loss for the public.
3. The so-called expansion of access obscures the limitations on free public access to public information that deals such as the NARA/TGN deal impose. For example,
   • NARA gives TGN "the rights to and the exclusive and unlimited right to use the Digitized Materials and all metadata created for the electronic databases for five years."
   • There is nothing in the contract that requires the information that TGN dispenses during the five years to be usable or reusble by the public and we must assume from the language of the contract that it certainly does not intend to grant such rights for use of public information to citizens.
   • The agreement gives TGN veto over disclosure of information about the agreement itself (section 4.4 of the Agreement).
   • The agreement creates a category of "confidential information" that is exempt from disclosure (Section 4.2). This includes "designs or styles, trade secrets, inventions," and even "know-how." This is an example of the government not only condoning "closed access" principles over "open access" principles, it is contractually requiring NARA to do so.
   • NARA is giving TGN the right to use NARA trademarks, which will obscure the difference between TGN and NARA itself thus blurring for the public the free-public access of government information with private-company-fee-access. The contract even requires NARA to link from its own Catalog (ARC) to the TGN site, thus effectively turning NARA into an advertiser and promoter of TGN. It is not clear to me that this requirement of NARA to link to TGN will end after five years.
4. It is not true, as the comment claims, that "The digitized copies of these records become freely accessible at all NARA reading rooms." Rather, the contract explicitly places limits on use of the digitized images for 5 years -- even in the reading rooms. These limitations include: "production for a fee of digital images" and, the permission to provide DVDs or CD-ROMs "for sale to the public." Even those distributions by NARA must include "license restrictions" that "will limit their use to prohibit resale, distribution or republication." (Section 1.4a [emphasis added])
5. The contract does not, as the comment claims, make "the digitized copies of these records freely available to everyone after five years at no cost to the taxpayer." Indeed the wording of the contract explicitly gives NARA the right after five years "to sell" the digital content. In addition, the contract does not remove restrictions on materials digitized from microform after 5 years. (See Section 1.4b)
6. The argument that any "enhancement" is good -- even if it imposes restrictions and two-tier access is often used by the private sector as a rationalization for privatization of government information. The battles over privatization of public information have a long history and, with the shift to digital information, we face new battles. I believe that the push for privatization -- particularly because of the costs involved in digitization -- means that we should be more cautious, not less cautious or cavalier, about promoting, facilitating, or encouraging contractual arrangements such as the NARA/TGN deal that grant special rights to the private sector or blur the difference between the private and public sectors.
7. Contracts such as this one set a precedent for creating two-tier or fee-only access to public information. When we allow the government to make excuses for failing to provide free public access by claiming that we have no choice and that this is better than nothing, we lower the bar for the next contract -- and the next.

It is a bigger problem than this one contract
We at FGI have no argument against the private sector repackaging and adding value to public information -- as long as the information itself is freely available to everyone to use and re-use. When everyone has access to the raw content, then we will all be able to repackage and add value to public information, we will all have free access and the ability to "enhance access."

But when any contractual agreement or system (private-sector or governmental) locks the raw information away from citizens or charges a fee for that information, then such systems and contracts, by definition, rest control of the information from the public and consolidate that control in a government agency or private sector company.

This problem of control exists not just with contracts such as the NARA/TGN contract. It also exists for information such as the Congressional Record and the Federal Register (which are "free" one-page-at-a-time, but cost thousands of dollars a year for a subscription; see http://bookstore.gpo.gov/collections/eproducts.jsp). It exists for Congressional Research Reports, which the government does not make available to the public except for those that leak out of government control or that private vendors provide for a fee (see http://opencrs.com/ and Inexplicable anomaly By Leslie Harris and Matt Stoller).

I am sure that some will argue that it is still possible (because of the non-exclusive nature of the contract) for the government or someone else to re-digitize these materials and make them freely available in the future. But that argument is the opposite of the argument for negotiating this contract in the first place. If we have to have a contract like this now, if this is the best we can do, if the government cannot afford to digitize these materials today, why should we assume that this will change in the future if those materials are already digitized? The practical result of contracts like this is that they will make it harder, not easier for these materials to ever become freely available to the public.

In summary, this is a big problem, not just a problem of this one contract. We are grasping short-term, good-enough expediency at the expense of long-term free public access. As citizens and librarians, we should not lower our standards for free public access to public information by accepting less than full, free, public access.

The National Archives and Records Administration (NARA) has announced a draft "non-exclusive agreement with The Generations Network, Inc. (TGN) to digitize and further expand public access to archival holdings in NARA's custody." The contract restricts free public access for five years.

• DRAFT PARTNERSHIP AGREEMENT AVAILABLE FOR PUBLIC COMMENT
  Posted for comment: March 10, 2008
  Comments due: April 9, 2008
  Send comments to: Vision@nara.gov or by fax to 301-837-0319

The contract specifies that NARA will receive digital copies of all holdings that are digitized as part of this agreement and "[a]s with all of NARA's digitization agreements, there will be no charge for researchers at any time to access the digital copies in any of NARA's research rooms" and that users will have "the opportunity to purchase copies of the documents in digital format" [emphasis added].

As the NARA announcement notes, projects like this "will enable the public to have electronic access to textual and microfilm records sooner than NARA itself can provide." Once again, lack of funding for public accessibility ends in a two-tier access: free if you get to a reading room, fee if you want to use the Web.

The proposed agreement puts restrictions on redistribution of the digitized records by NARA for five years.

For a period of five years following the donation [TGN "donated" copy of the Digitized Materials to NARA], NARA will not sell, make available for downloading, or otherwise provide in electronic form, the entire contents of the Digitized Materials or a major file segment thereof. During this five year period NARA's use of the Digitized Materials will be limited to (i) access by staff and researchers at NARA locations; (ii) production for a fee of digital images of a microform publication or a portion of a series of original records, with a minimum complement of metadata to enable the purchaser to describe, identify, locate, retrieve, and manage the images; 2 (iii) display of sample images on NARA's website or elsewhere to promote awareness of NARA's services and activities or for noncommercial educational purposes, and (iv) to reproduce portions of the Digitized Images on offline storage devices that are not accessible via Internet such as DVDs or CD-ROMs, with metadata created by NARA only, for sale to the public at rates established by NARA. In the case of (ii) and (iv) above, license restrictions on the materials as issued by NARA will limit their use to prohibit resale, distribution or republication of the Digitized Material in any format or media by the original customer or successive owner of the media.

After five years from the date TGN donates Digitized Materials made from original records, NARA will have full and unrestricted rights to use them, including the right to sell, make available for downloading, or otherwise provide in electronic form, the entire contents of the Digitized Materials or segments of them. [emphasis added]

See also: GAO/Thomson-West Contract Raises Questions